Abstract

ESIS VILLARROEL, IVETTE S.; DE ABREU NEGRON, MARÍA GABRIELA  and  BRICENO OLIVARES, GABRIEL JOSÉ. The Analysis of Legitimate Expectations in the Identification of Indirect Expropriations after a Decade of Arbitration Practice (2010-2020). Rev. Derecho Estado [online]. 2022, n.53, pp.375-408.  Epub Jan 15, 2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n53.13.

The determination of indirect expropriations of foreign investments requires the analysis of several elements, referred to both by UNCTAD, the OECD and various investment treaties: the degree of interference of the State measure in the property of the investor; the nature of the State act, and the violation of the investor's legitimate expectations. This article aims to analyze legitimate expectations from a doctrinal and conventional perspective jointly with the study of 63 arbitral awards issued between 2010 and 2020, under the case-by-case approach, to determine if they were considered as an identifying criterion. In this analysis, cases were considered both for violation of fair and equitable treatment, and for the indirect expropriation of foreign investments. As a result, there were found four common criteria commonly addressed by arbitral tribunals in order to understand the legitimate expectations: (i) the temporal limitation, raised at the beginning of the investment and, in some cases, during the execution of the investment; (ii) the material limitation: the specific State action that generated them; (iii) the examination of the investor's conduct and, in particular, the duty of due diligence; and (iv) the substantial deprivation of foreign investment as an important criterion for identifying indirect expropriations. In this last point, three scenarios were detected: the consideration in few cases of legitimate expectations - together with the other criteria - to identify an indirect expropriation; the consideration of the substantial deprivation of property as a preponderant element to qualify this type of expropriation and the analysis of the legitimate expectations for the claims of fair and equitable treatment.

Keywords : Legitimate expectations; indirect expropriation; fair and equitable treatment; arbitral awards; investor-State arbitration.

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